The opinion of the court was delivered by
Thе defendant was convicted of murder in the second degree, and appeals.
At the hearing on the motion for a new trial there was evidence that during the deliberations of the jury it was stated by one or more jurors that at a former trial the defendant had been convicted of murder in the first degree. Because of this fact the defendant' insists he should have been granted a new trial.
The former trial had been referred to in the course of the proceedings. Witnesses had been cross-examinеd with reference to testimony given at the former trial, and the fact that there had been a former trial was well known to' the jury. The defendant reliés on the rule that evidentiаl statements of a
The case of The State v. McCormick,
The case of The State v. Burton,
No case is cited in which a statement of the nature of a former verdict, standing аlone, has vitiated a verdict.
“When a juror in a capital case'makes a statement to his fellow members аbout material matters outside the evidence, and of a prejudicial character, based on his personal knowledge, it will’ vitiate, the verdict, unless a cleаr showing be made that the defendant suffered no prejudice from the misconduct.” (syl. ¶ 1.)
In the opinion it was said:
“Who can say that they were not affected by the information wrongfully introduced in the jury-room that another jury had at another time found the defendant guilty of the highest degree of the crime with which he was charged?” (p. 708.)
Because of this remark in the opinion, and bеcause of the different meanings which might'attach to the word “prejudicial” in the syllabus, the decison in the Burton case might be misapplied. “Prejudicial” may mean merely derogatory to the defendant or his defense, or it may mean actually, or naturally and probably bringing about a wrong result, under all the circumstances of the case. Thе remark in the opinion might lead to' the inference that if a statement about a material matter outside the evidence and adverse to the defendant should be made, prejudice in the result would be presumed until the contrary should be made to appear. On this subject the court has made itself clear in a long line of decisions applying section 293 of the criminal code:
“On an appeal the court must give judgment without regard to technical errors or defects, or to exceрtions which do not affect the substantial rights of the parties.” (Gen. Stat. 1915, § 8215.)
Even the violation of an 'express statutory inhibition will not work a reversal unless the court is able to say, thе whole record considéred, that a substantial right was prejudicially affected. (The State v. Peterson,
In a case like the Woods case, the proof that the girl was under age of cоnsent might be so convincing that the- court would have no hesitation in saying the statement made by the juror had no influence on the verdict. In a case like the McCormick сase, it might be apparent th.at the statement of the juror merely augmented a superfluity of proof of guilt. In the Burton case, the tension was such that the evidential stаtement of two jurors concerning the inoffensive character of the man killed, supplemented by the other statements injected into the
A statement of the nature of the verdict at a former trial is pot evidential. The fact stated adds nothing to the evidence respecting any contested issue. It may not even be interesting. It may be a matter of common knowledge. It does not naturally or necessarily tend to corrupt the deliberations of a jury, presumably regardful of their oaths and the instructions given by thе "court, and in any given instance it is the function of the trial court to determine whether or not it probably subverted their integrity and vitiated their yerdict. In this instance this court agrees with the trial court that it is highly improbable the extraneous remarks influenced the jury to return an unwarranted verdict.
The defendant complains that at the hearing on the motiоn for a new trial the court declined to receive evidence relating to misconduct of the jury in the jury-room. The court did not decline to hear evidence of any material fact or facts occurring during the deliberations of the jury. It did properly decline to hear evidence as to the influence and effect of fаcts occurring during the deliberations of the jury on their minds in arriving at their verdict.
The finding of the trial court on evidence produced at the hearing on the motion for a new trial, relating to alleged misconduct of a juror outside the jury-room, is approved.
The defendant says the court admitted, over objection, proof of offenses committed by the defendant not related to the charge contained in the information, and permitted the defendant’s character to be wrongfully assailed. What happened was this: The killing occurred immediately after a meeting of a Rebecca lodge in the city of Silverdale, which the defendant and his victim attended. The weapon'used was a .45-caliber revolver, which the defendant took with him to the meeting. He took the witness stand in his own defense, and in his examination in chief improved the оpportunity to tell of his habit and practice of Parrying a revolver. He said he carried a gun when he was at Frederick, Okla., in the cattle
Assignments of error relating to the admission of evidence; instructions given the jury, and the submission to the jury of the crime of murder in the second degree, have been considered, and are held to be without substantial merit.
Th judgment of the district court is affirmed.